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Further Reading

If a new proposed municipal ordinance passes in the coming months, San Francisco could become the first city in America to outright ban the use of facial recognition technology by its police department or any other city agency.

According to a new bill unveiled Tuesday and first reported by the San Francisco Examiner and The Verge, the city would also impose a new pre-emptive "Surveillance Technology Policy" for city agencies that want to acquire any new gear that could impact privacy. Such a requirement would put San Francisco in line with its neighboring cities of Oakland and Berkeley.

"Our intent is to catch people’s attention and have a broader conversation as to where the moral precipice is for technology, after which you’ve gone too far," said Lee Hepner, a legislative aide to Supervisor Aaron Peskin, who proposed the bill. "This is a harm to our way of life, a harm to our democracy, and a harm to marginalized communities. There is a salient interest in facial recognition, too: it creeps people out."

The bill states unequivocally that the risks involved in using the technology "substantially outweigh... its purported benefits, and the technology will exacerbate racial injustice and threaten our ability to live free of continuous government monitoring."

But the legislative aide also said that the board of supervisors still does not have a full inventory of what surveillance technology both agencies have.

"We don’t know what they have, and we don’t know what they’ve tried to acquire," he told Ars.

Further Reading

Facial recognition historically has resulted in more false positives for African-Americans. As Ars has reported before: if the training data is heavily skewed toward white men, the resulting recognizer may be great at identifying other white men but useless at recognizing anyone outside that particular demographic.

Nevertheless, law enforcement at airports in particular have recently expanded their use of the technology.

The SFPD would not give its opinion on the bill.

"The Department does not comment on proposed legislation," Sgt. Michael Andraychak, a police spokesman, told Ars."We do not have any real-time video cameras connected to the [facial recognition] system‎ and do not plan to in the future."

However, Andraychak also explained that the SFPD did test "facial recognition software" from 2013 until 2017, when it was used on SFPD booking photos.

"Results were not used as a form of 'identification,' but merely as leads to further the investigation," he elaborated by email. "The testing was limited to members of the Forensic Services Division."

When Ars informed Hepner of the SFPD's previous testing, he said this was the first time his office had learned of it.

A quirk in the law

Given that San Francisco is the sole city in California that is also a county, it has two law enforcement agencies: the SFPD, which provides normal city policing, and the San Francisco Sheriff’s Department, which operates the county jails and provides security in a number of city locations, including City Hall, the courts, and hospitals and clinics. (This is why the City and County of San Francisco only has a Board of Supervisors rather than a conventional City Council.)

Hepner explained that San Francisco is exploring whether under state law, the board of supervisors has the power to restrict the sheriff's procurement. The SFSD may be able to acquire facial recognition tech, or other gear, through private, state, or federal grants.

Meanwhile, Nancy Hayden Crowley, an SFSD spokeswoman, said the agency was "reviewing" the proposal.

Brian Owsley, a law professor at the University of North Texas who formerly served as a federal magistrate judge in the southern part of the state, told Ars that state or federal law could preempt police powers. That aside, such a law would have unintended consequences.

"I have not heard of any other cities seeking to ban facial recognition technology," he wrote. "As a practical matter, any such city would forgo some opportunities. For example, it is doubtful that Major League Baseball would want to have an All-Star game in San Francisco. Neither the Democratic nor Republican Parties would want to host conventions in the city due to potential safety concerns. The Secret Service would likely seek to dissuade the president and other members under the umbrella of its protection to visit such a city."

The bill is set to go to the Board’s Rules Committee in 30 days and could be in front of the entire Board within months. It requires six votes to pass—but would be vetoed by the mayor. Eight votes (of the 11 total supervisors) would constitute a veto-proof majority.

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Cyrus Farivar
Cyrus is a Senior Tech Policy Reporter at Ars Technica, and is also a radio producer and author. His latest book, Habeas Data, about the legal cases over the last 50 years that have had an outsized impact on surveillance and privacy law in America, is out now from Melville House. He is based in Oakland, California. Emailcyrus.farivar@arstechnica.com//Twitter@cfarivar